G-E (Children : Hague Convention 1980: Repudiatory Retention and Habitual Residence)

Habitual residence for a return application under the Hague Child Abduction Convention 1980 must be assessed at the date of wrongful retention. Repudiatory retention requires a subjective intention to depart from the agreed temporary stay and an objectively identifiable manifestation of repudiation of the other parent’s custody rights. Habitual residence requires a broad factual assessment of the child’s connections with both countries. Parental intentions and the stability of residence are relevant, but permanent residence and a prescribed period of residence are not prerequisites. Where the trial judge has applied the correct principles and sufficiently evaluated the evidence, an appellate court should respect findings reasonably open to that judge. A disagreement about the weight assigned to particular evidence does not itself justify intervention.

An Australian father sought the summary return to Australia of his two children, aged six and three, under the Hague Child Abduction Convention 1980. Their British mother had been their principal carer. With the father’s agreement, she brought them to England in July 2017 because her father was terminally ill. After his death, the parents agreed an open-ended extension of their stay. The children attended school and pre-school and had existing connections with England through earlier visits.

HHJ Hillier, sitting as a Deputy High Court Judge, dismissed the application on 18 October 2018. She found that the mother manifested her decision to remain in England on 27 March 2018. She also found that the children had become habitually resident in England by late December 2017 or early January 2018. The father appealed, arguing that objective evidence established an earlier repudiatory retention and that the children remained habitually resident in Australia. He accepted that the judge had correctly directed herself on the law. The central question was whether her factual findings and evaluation of habitual residence were reasonably open to her on the evidence.

1. The appeal was dismissed unanimously. Moylan LJ’s reasons were agreed by Flaux and Longmore LJJ. The judge had sufficiently analysed the evidence, and her findings concerning both the mother’s intentions and the children’s habitual residence were open to her.

2. The date of wrongful retention had to be determined before assessing habitual residence at that date. Under In re C and another (Children) (International Centre for Family Law, Policy and Practice Intervening) [2018] UKSC 8, repudiatory retention required a subjective intention not to honour the agreed temporary stay and an objectively identifiable act or statement manifesting repudiation of the other parent’s custody rights. A privately formed intention was insufficient. The Supreme Court’s markers were non-exhaustive.

3. The judge had assessed the objective evidence individually and collectively. She had critically examined the mother’s explanations for obtaining a school place, arranging storage, consulting solicitors and corresponding about her future. Her references to welfare matters assisted her assessment of credibility and the allegation of clandestine planning. She was entitled to accept the mother’s oral evidence that she remained undecided until March 2018 and manifested her decision on 27 March. The father’s criticisms sought a different weighting of evidence which the judge had properly evaluated.

4. Habitual residence required a broad, comparative factual analysis of the children’s connections with both countries. The expectations concerning integration identified in In re B (A Child) (Reunite International Child Abduction Centre and others intervening) [2016] AC 606 were guidance rather than sub-rules. Under In re R (Children) (Reunite International Child Abduction Centre and others intervening) [2016] AC 76, permanent or indefinite residence and a particular duration of residence were unnecessary. Parental purposes and intentions, together with the nature and stability of residence, remained relevant. Proceedings brought by HR (with the participation of KO and another) [2018] 3 WLR 1139 required a global assessment of where the centre of the child’s life lay.

5. The criticisms of the description of the children’s Australian roots as shallow and of the weight given to the temporary arrangements had some force. Nevertheless, the judge had undertaken a sufficiently broad assessment. Their existing English ties and increasing stability and integration supported her conclusion. Appellate intervention was therefore unwarranted. With the retention date upheld, the father would also have needed to establish that the children were not habitually resident in England by March 2018.

• Court of Appeal (Civil Division): [2019] EWCA Civ 283 . Permission to appeal was granted by Moylan LJ on 5 December 2018. The appeal was dismissed unanimously, leaving the dismissal of the father’s return application in place.
• High Court, Family Division: On 18 October 2018, HHJ Hillier, sitting as a Deputy High Court Judge, dismissed the father’s application under the Hague Child Abduction Convention 1980. She found that the children were habitually resident in England and Wales before their wrongful retention on 27 March 2018. No citation for that judgment was supplied.